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Law School and Learning Ethics

rabbifink — Wed, 09 Sep 2009 19:16:09 +0000

Lawyers take the brunt of a lot of jokes and jabs questioning their ethics.

Believe it or not, Law Schools actually teach Ethical Lawyering and every student is required to pass that class prior to taking the bar.

Law blog Legal Geekery (recommended reading for law students) has an article criticizing the way Law Schools attempt to teach ethics to future lawyers.

In short, the argument goes (read here), by testing law students with proctors in the room, law students are not taught how to make ethical choices. Also, exams are taken on a software that locks the test taker’s computer while they take the exam. Instead, the schools should trust students the same way they will need to be trusted when they are in the work force with no proctor watching them. By watching every move the students make, Law Schools in effect, leave Law Students unprepared for the “real world”.

It got me thinking. Judaism is full of rules and regulations. The Torah is basically a really tough rule book. Does keeping the Torah’s laws help one become more ethical? Using the argument on Legal Geekery, the answer is no. Just because I act ethically because I fear retribution does not help me make ethical decisions when there is no fear of retribution.

But I disagree. I think practice makes perfect better. The Torah and its commandments are practice for the not-directly-related-Torah world when we do not have explicit rules and regulations to abide by. When we train our minds and bodies to act a certain way those thoughts and actions can become second nature. Second nature is pretty powerful. In fact, I recently mentioned in a Sermon that Rabbi Elyah Lopian held that second nature is stronger that our inborn tendencies. Our inborn tendencies are more easily changed than our bad or good habits. That is why good habits are so important. Rabbi Lopian explains that the commandments are tools for developing those good habits.

I see some strong parallels to Law School.

Law School is about developing good habits for Law Practice. Developing good habits for reading and briefing cases and developing good habits for analyzing facts and policies are what Law School is all about. Ethical Lawyering is the same. Developing good habits in ethics is good “practice” for “practice”. Doing your own work, solving problems on your own and using only permissible resources are good practice for becoming an ethical lawyer. Making honesty a habit will serve you well in practice. When ethics become second nature we can take away the training wheels and let you ride on your own with no proctor.

The proctor is training you. If you practice, you will make honesty second nature.

Murder In Jewish Law and United States Law

rabbifink — Fri, 04 Sep 2009 17:57:47 +0000

Yesterday we began learning about Homicide in our Criminal Law class at Loyola Law School. Our Criminal Law professor is world famous Laurie Levenson (she is in the news very often). She is an incredible teacher and a very successful practitioner. Studying Criminal Law in her class is a privilege. (Plus, she brings baked goodies for the class and sometimes stops at Schwartz’s Bakery to get some kosher goodies for the two Kosher observant Jews in the class. Pretty nice!)

After learning the building blocks of Criminal Law we began our unit in homicide.

One of the first homicide cases we read was a brutal murder of a 10 year old girl. The defendant offered no defense. He undeniably killed her in a brutal fashion, while intoxicated he took a knife to her, stabbing her about 60 times as he chased her around the house. The court decided that he could not get the death penalty.

Why? The court says that brutality of a murder is not a factor in considering whether a murder is in the 1st degree (incurring the death penalty). First degree murder requires “premeditation” and that is analyzed by looking at 3 factors. 1) planning 2) motive and 3) manner. In this case, the defendant did not plan, had no motive and the manner was not a methodical way of killing. It was random and unnecessary. The court sentenced him to life in prison and he escaped the death penalty.

Many of my co-students found this very difficult to swallow. Here we have a violent, brutal murder who will not get 1st degree murder. Some of my co-students wanted the murderer brutally killed in retribution.

In Jewish Law, murder and some other capital crimes are punishable by a death penalty. How does one “qualify” for the death penalty? A murderer must be warned by two witnesses that his offense will incur the death penalty. He must acknowledge their warning. Then he must commit the murder with 10 seconds. This approach to capital punishment reflects a basic tenet of Judaism.

Judaism is all about moral choices. Therefore, Judaism punishes the murderer who is making a clear, coherent choice. Only with fair warning and a true understanding of one’s actions are the murderer’s actions a clear indication of moral choice to commit murder.

In our Law School case, the fellow did not make a conscious choice. The 3 factors that demonstrate premeditation all demonstrate a choice by the murderer. Planning a murder shows that the murder truly understands what he is doing and is choosing his action of murder. Same for motive and manner. We need to see a conscious choice to take a life for murder to be in the 1st degree.

A drunk man who crazily kills for no reason is not a murderer in the 1st degree. He is a sociopath and must be locked up. But to take his life away via the death penalty requires more than just killing another. It requires a moral choice.

Judaism teaches us that our life is made up of little more than the moral choices we make. Our choices are who we are.

Choose wisely.

Too Many Questions

rabbifink — Thu, 28 May 2009 00:27:07 +0000

I read a really interesting column this week.

Whenever I find a convergence of ideas between the Legal field and Torah I get excited.

This time I found a divergence. Not quite as exciting, but very interesting.

The NY Times followed up on a study conducted a few years ago by a 2nd year Georgetown Law School Student.

The study was groundbreaking. It focused on the amount of questions from the Judges to lawyers and its effect on the outcome of cases.

It turns out that there is almost a direct correlation between the number of questions the lawyers are asked and the decision of the Supreme Court. Over a five year period , the party that was asked more questions lost 86% of the time.

That is a lot. Some of it can be attributed to the Justices attempting to find holes in the weaker arguments. Most cases at the Supreme Court level are very gray areas. The side that is weaker will be exposed by more questions, thus the Judges use the questions to poke holes in the less compelling argument.

On the other hand, getting the Judges to ask your opponent more questions will help you win as well.

One reason for this is that the Judges, by asking questions, are attempting to show their colleagues the flaws in the arguments.

In fact a new, more comprehensive study found:

“The more attention justices pay to a side,” said Timothy R. Johnson, who teaches law and political science at the University of Minnesota and is one of the new study’s authors, “the more likely that side is to lose.”

This week is the Jewish holiday of Shavuos. A day where Jews around the world celebrate the giving of the Torah to the world. To this very day , Torah is studied in depth. Its ideas are discussed and argued.

The greatest arena for this study is the Talmud. The Talmud is a collection of legal analysis of Jewish Law. It is also a lot more thant that, but the purpose of the book is to develop a high level understanding of Jewish Law.

I find it very interesting that the Talmud asks tons on questions. It is not a law book. It is a book of questions. Invariably the side of the law with more questions will help the Talmud get closer to the truth. Questions do not indicate weakness. Good questions provoke better answers and better understanding. The side that has better answers emerges as the true path.

This holds true for all of Judaism. We encourage questions. We provoke discussion. We want to get closer to truth. The path to the truth is paved with questions.

When in the Supreme Court, questions prove fatal. In Judaism they are a necessary component to finding the true path.

On this blog I have an “Ask the Rabbi” Section. I encourage questions. If you have any, just click. I will try to answer as quickly and effectively as possible.

Clothing Round Up, Now with Lawyers

rabbifink — Thu, 05 Feb 2009 16:42:49 +0000

Over the last couple of weeks I have blogged about wearing shorts while playing basketball and then I blogged about the new dress code in the White House and then on Monday night I spoke about the power of clothes and Tzitzis. It makes me think I should blog exclusively about clothes. I was trying to avoid more clothes posts but for some reason I could not resist.

No, I am not searching the web for articles about how to dress. Yet, they keep on finding me. This time I was reading the Wall Street Journal and I found this article. The article is about a very shmanzty law firm called Bickel & Brewer.

Bickel & Brewer has a tradition of formal dress in the workplace. They believe that clothes do influence our attitudes. They believe that high-powered lawyers (whatever that means) should look like high-powered lawyers. Apparently, in times of economic uncertainty the first to go are the ones who dress casually. Interesting.

The Partners at the firm tutor the young associates on the finer aspects of dressing formally. Shiny shoes, starched dress shirts, dark suits and ties are the uniform of this law firm.

The idea of wearing casual clothes to work abhors the partners. One of the partners, Mr. Gardner says: “It’s actually a little offensive to my sense of style,”. Without a suit, he says, “I would feel like a football player who ran out on the field without his shoulder pads.”

The Wall Street Journal reports that business is good for formal clothiers. The White House won’t need to bail them out, but maybe they should check them out. We don’t want our president on the football field without his shoulder pads…

Recess + Litigation = Big Problem

rabbifink — Tue, 27 Jan 2009 16:23:08 +0000

“Oh I can be quite litigious” - Cosmo Kramer

As Law Student I read about 25-30 cases per week. All of the cases I read this year are lawsuits. Whether they deal with torts and damages, contract disputes or property issues “A” is always suing “B”. The lawsuit is the basis of the American Legal system. It allows any victim of a social or financial injustice to seek and recover damages for harms suffered. There is a downside however.

In Broward County Florida there is no running during recess. The county is ever fearful of increased law suits aiming to recover damages for injuries sustained by children during recess. 189 suits were settled in the past 5 years in Broward County. So now during recess children can play with their PSP or Nintendo DS. No one gets hurt, no on gets sued. Is this a good thing? (no, not for the lawyers…for them it is good!)

Obesity is one of the greatest preventable health risks facing our society today. Now children cannot even get cardio exercises during recess! I don’t think this is going to help too much. There is another social problem that arises from restricting children’s movement and not allowing them to get hurt. When children are so protected that they never feel any pain they are not prepared for the inevtiable disappointments and trials of life. Part of growing up is dealing with pain and disappointment on a child’s scale. Then as we mature we can use our experiences from dealing with problems as a child to help us as adults. Taking away opportunities for pain is actually taking away opportunities for growth.

I propose a Constitutional Right to Recess. Barring lawsuits except in cases of gross negligence or recklessness by the districts. We need our children to be strong and able to deal with adversity. Bubble wrapping them will cause more harm than good.